Friday, February 25, 2011

Florida Governor Heeds Nursing Home Industry and Fires Advocate for Elderly

Florida governor Rick Scott is making headlines for canceling the state's high-speed train project, but in another, less-noticed move he may be derailing protections for long-term care residents by firing their chief advocate in the state. The decision, an apparent capitulation to the wishes of the long-term care industry, has alarmed resident advocates, who fear a decline in their ability to protect the institutionalized elderly from substandard care and abuse. 

"We are very concerned that the governor of Florida has yielded to industry demands to dismiss an effective advocate for residents in a state that so many elderly Americans choose as their retirement home," said Sarah F. Wells, executive director of the National Consumer Voice for Quality Long-Term Care, in a press release.

The ousted advocate, Brian Lee, was director of the Florida Long-Term Care Ombudsman Program, a position he had held for seven years. Every state is required to have an ombudsman program that serves as an independent voice for residents -- addressing resident complaints and advocating for improvements in the long-term care system. Florida is perhaps unique in the nation in that all of its 300 ombudsmen are volunteers, not paid employees. The volunteers make annual inspections of licensed long-term care facilities and try to resolve problems.

"The ombudsman's role is to focus very narrowly on the representation of the residents," Hank Stevens, a volunteer ombudsman in Broward County, told ElderLawAnswers. "These vulnerable citizens have no lobbyists, trade council, or collectively, any representation -- except for what the volunteer ombudsmen provide. In the process of doing that, I suspect that we are, at best, a bit of a frustration for the long-term care industry." 

By all accounts the volunteers' leader, Brian Lee, was a passionate champion of the elderly, but one who crossed swords with the long-term care industry more than once. Immediately prior to his removal he had requested that the state's 677 nursing homes make public the names of their owners and operators, something that is required under the new federal health care law. Earlier, he had asked owners to demonstrate they had enough food and water set aside for residents in case of an emergency like a hurricane. 

When Republican Rick Scott won the governorship, the Florida Assisted Living Association sent him a letter recommending that Lee be replaced with someone friendlier to their industry. Scott seems to have listened, although Lee was given no explanation for his removal, according to the Miami Herald. (Governor Scott's office has not responded to ElderLawAnswers' request for comment.) 

In the weeks prior to Lee's firing, his army of volunteer ombudsmen worked hard to save his job. The heads of all 17 of the district offices in the state ombudsman program signed a letter to the governor calling Lee "the guiding light of the program. He has transformed the program's culture from one that was regulatory-focused to one that is now resident-centered, doing what is right for some of Florida's frailest citizens." 

Fears That Oversight Will Be Compromised
Advocates in the state are worried that Lee's removal signals the start of a weakening in the ombudsman's role in protecting elderly residents of long-term care facilities. 

"There is concern that members of the industry have a very strong lobby and would like to do away with many of the ombudsman's capabilities, especially the inspections of the nursing homes," said Linda Stevens, Hank Stevens's wife and also a volunteer ombudsman in Broward County. "I think politically the firing of Brian Lee is to move in the direction of lessening our capabilities to advocate for these residents." 

Lee, 39, is quoted in the Sarasota Herald-Tribune as saying he was proud to have renewed the ombudsman program's focus on resident rights during his tenure.  "I'm very glad I never compromised my principles or those of the program," Lee said.  The volunteers are now reaching out to lawmakers in the state to try to win back Lee's job.

For a Miami Herald article on the Lee's removal, click here.
For more on the nation's long-term care ombudsman program, click here.

Wednesday, February 23, 2011

Sign After Reading

A few years ago some friends invited me to join them for a game of paintball. I had never been to a paintball field before. I wasn't sure that I wanted to go. Don't paintballs go 300 feet per second? Could I rent a paintball gun at the field? How much is ammunition? I sorted through all these questions and ultimately decided I would go.

When I got to the paintball field, I paid my entrance fee and was presented with a waiver to sign. I looked it over and was surprised to find terms like "sheer cliffs and other hazards" and "accidental death or dismemberment" and "agree to hold harmless." I turned to my friend who had invited me along and asked if he had read this. He said that he hadn't, but "nobody really reads that stuff."

My friend may have been right. Most people probably give a cursory glance to a paintball form. People send so much time thinking over whether or not they are going to buy that car, hit that paintball field, do that business deal, or work at that job, that by the time they are asked to sign on the dotted line, they are exhausted. They just want to get it done. Often that means giving an agreement a cursory glance. This is a mistake.

Under Texas Law, when you sign a document you are presumed to have read and understood its contents. With a few exceptions that are beyond the scope of this entry, you will likely be stuck with what you signed (whether you read it or not). So read those documents before you sign them, and if you don't understand any terms or conditions don't be afraid to consult someone who does. You might as well read and understand the contents of an agreement; after all, the Texas law will presume you have.

-Collin J. Wynne

Tuesday, February 15, 2011

Currently on The Swinton Law Firm Radio: When to Use an Elder Law Attorney

My website,,  has a link to Elder Law Radio. The current show is summarized below.  You can listen online or download it for later.

I hope you find it informative.
The Swinton Law Firm Radio

When to Use an Elder Law Attorney
  Peter J. Strauss with Harry Margolis
Peter J. Strauss is co-director and founder of the Elder Law Clinic, which provides representation to persons for whom a guardianship is sought and serves as court evaluator in guardianship proceedings. He also teaches the Elder Law course. He has been an adjunct professor at New York Law School since 1992 and was named distinguished practitioner in residence in the fall semester 2003.

Monday, February 14, 2011

The Vethan Law Firm has moved!

The Vethan Law Firm PC is pleased to announce its move from 2909 Baldwin to 3501 Allen Parkway, Houston, TX 77019. Stop by and see us, we're open for business!

Social Networking or Creating Evidence?

Social networking is the hottest thing going, from teens to professional to entire families. Individuals create accounts on social networking websites such as Facebook, Twitter, LinkedIn, and Yelp, to link with other people who share common interests. However, once you post pictures, blogs, or any information on the social networking website, it may no longer belong to you; it may actually belong to the website.

Social networking websites are very useful tools to develop connections between friends, colleagues, and even to check out a professional individual or business. What some individuals fail to realize is that once pictures, comments, or personal information are posted on a social networking website, it invites the public into your life. Most social networking websites allow you to set privacy settings, however, even then, others have access to your information. This information can be used in various ways, such as a screening tool by potential employers, or as evidence during litigation in Texas.

Additionally, in a court proceeding, the opposing party may be able to access your pictures, blogs, or information which may be used as evidence against you, or others. Beware of what you share on the web!!

Friday, February 11, 2011

The Five Phases of Retirement Planning

Retirement has changed radically over the last several decades in America. Years ago, you expected to work most of your life for a single, large employer and you then count on a pension. "Retirement planning" meant figuring out how to use your free time. Today, in all likelihood you will be living in retirement on money you, yourself, saved. "Planning" means calculating rates of return and deciphering tax rules. 

This change from institution-funded to self-funded retirement constitutes a dramatic shift of responsibility. In recognition of this shift, ElderLawAnswers has significantly expanded its ElderLaw 101 section on Retirement Planning, providing you with information you can use no matter where you are in the continuum of retirement planning. 

The section begins with an explanation of the stages along that continuum -- the five phases of retirement planning and the key aspects of good planning to be carried out during each phase. Below is a summary.

PHASE I: Accumulation
This period begins when you enter the workforce and begin setting aside funds for later in your life, and ends when you actually retire. If your employer offers 401(k), 403(b), or 457(b) plans, have you signed up and are you contributing the maximum allowed? Did you know that the "new normal" requires retirement savings rates for most Americans to exceed 10 percent? If self-employed, are you shortchanging yourself on Social Security in order to reap tax deductions? 

PHASE II: Pre-Retirement
This phase occurs during the final years of the accumulation phase and should begin when you reach 50 years old or are 15 years away from retiring, whichever happens first. Now is the time to get your plan in place, making sure your finances are lined up correctly for retirement day so nothing will be left to chance. If you work for a company with a benefits specialist, arrange an appointment to become informed about the various ways you can convert your employer retirement savings into a stream of income or an IRA. Consider using a tool known as "scenario planning." Start learning about Social Security and your options for beginning to receive retirement benefits. Familiarize yourself with the basics of Medicare. 

PHASE III: Early-Retirement
This phase lasts from the day you retire until you are 70 years old. (For those who do not plan to retire until well into their 70s, some tasks in this phase may occur later.) A key purpose of this phase is to create a clear communication channel with your family so information can be shared, questions asked and answered, and decisions made in a calm, supportive way. It's also the time to assess how well your finances are working now that you are using your retirement savings. Fine-tune your income and expense projections, taking into consideration how you will meet minimum distribution requirements from your tax-deferred accounts. 

PHASE IV: Mid-Retirement
This phase begins at age 70 and lasts as long as you are able-bodied and high-functioning. Despite your good health, begin looking at what steps you would like your family to take should your condition decline significantly. In most cases your ability to make all your own decisions, care for yourself, engage with the world on your terms, and manage your affairs does not vanish in a split second. It takes courage to dive into a conversation about giving up and transferring control. 

PHASE V: Late-Retirement
This phase begins when your health has taken a turn for the worse and there is little likelihood of it being fully restored. You require significant help to function day to day. The hope is that by this point all the planning done in prior years makes this transition as manageable and life-affirming as possible.